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HomeMy WebLinkAbout2025-11-07 PD Legal Memo (PL-BOA-2025-000119) RENEE N.C. SCHOEN 5936 Corporation Counsel JEAN K. CAMPBELL 7424 Deputy Corporation Counsel Office of the Corporation Counsel County of Hawai`i 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-Mail: jeank.campbell@hawaiicounty.gov Attorneys for COUNTY OF HAWAI`I PLANNING DIRECTOR BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I CLAUDIA ROHR, CASE NO. PL-BOA-2025-000119 Appellant, vs. DIRECTOR OF THE PLANNING DEPARTMENT, COUNTY OF HAWAI`I'S JEFFREY W. DARROW, PLANNING LEGAL MEMORANDUM; CERTIFICATE DIRECTOR, COUNTY OF HAWAF I, OF SERVICE Appellee, and Hearing Date: November 14, 2025 RICHARD and DEBORAH STANDKE, Landowners. LEGAL MEMORANDUM COMES NOW,Appellee JEFFREY W. DARROW, PLANNING DIRECTOR, COUNTY OF HAWAII ("Director"), by and through his attorney, Jean K. Campbell, Deputy Corporation Counsel, hereby submits this Legal Memorandum in the above-captioned matter. This Pleading is submitted pursuant to the Scheduling Order dated September 30, 2025. The Director respectfully requests that this Board uphold the Director's determination that no Special Management Area Use Permit is required for the proposed construction at issue in this matter because the proposed construction does not meet the definition of"development" under either Hawaii Revised Statutes ("HRS") §205A-22 or Planning Commission Rule 9-4(i), as reflected in the Director's Return of Application letter dated April 11, 2025. I. Background On March 14, 2025 Richard Standke submitted a Special Management Area Use Permit Assessment Application to the County of Hawaii Planning Department in connection with proposed construction at his property located at 14 Oeoe Street in Keaukaha. See ROA at Page 1. The work described in the application included the construction of a first floor concrete deck and an internal staircase to connect the upper and lower portions of the house, the addition of a lanai on the upper floor in front of the current living room extending 12 feet from the front of the structure for the 20 foot width of the house, and the replacement of the existing roof. See ROA at Page 2. The existing home is approximately 2,208 square feet and the estimated cost of the proposed work is $25,000. See ROA at Page 2. Following the review of the Use Permit Assessment Application and the applicable Special Management Area("SMA")requirements, the Planning Director issued a Return of Application letter dated April 11, 2025, explaining why the proposed work is an exempt action and that no SMA permit is required. See ROA at Pages 20-21. 2 Claiming that the proposed construction will adversely affect her ability to access emergency services at her property, evacuation routes from her property, and her ability to access the nearby public shoreline,Appellant timely filed her General Petition for Appeal on May 1, 2025, which was later amended by Amended Petition Planning Director on May 31, 2025 ("Petition"). II. Position Statement Land uses within SMA in Hawaii County are governed by HRS Chapter 205A and by Planning Commission Rule 9. The primary purposes of these SMA controls are to protect valuable resources along shorelines against environmental degradation and to ensure that adequate public access is maintained to the shoreline, the shoreline being the key focus of these regulations. The Hawaii State Legislature articulated that"special controls on developments within an area along the shoreline are necessary to avoid permanent losses of valuable resources and the foreclosure of management options, and to ensure that adequate access, by dedication or other means, to public owned or used beaches, recreation areas, and natural reserves is provided. The legislature finds and declares that it is the state policy to preserve,protect, and where possible, to restore the natural resources of the coastal zone of Hawaii." [emphasis added] See HRS 0205A-21. The criteria for approving development within the SMA focus on protection of the natural environment, establishment of public recreation areas, and ensuring access to the shoreline. See HRS§205A-26(1). Planning Commission Rule 9-2 echoes the purposes found in Chapter 205A,providing that"special controls on development within the area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options, and to 3 insure that adequate public access is provided to public-owned or used beaches, recreation areas, and natural reserves..." See Planning Commission Rule 9-2. The property at issue is not a shoreline parcel and in fact is separated from the shoreline by a publicly owned shoreline lot and a public roadway. See ROA Pages 11, 24-25, and County of Hawaii Exhibit C. Likewise, Ms. Rohr's property is not a shoreline parcel and is separated from the shoreline by a publicly owned shoreline lot and the same public roadway. See COH Exhibit C. A. The Proposed Work is Not Development Key to the Director's determination how the uses proposed by the Landowners conform to the definition of"development." HRS §205A-22 defines "development" as follows [emphasis added]: "Development": (1) Means any of the uses, activities, or operations on land or in or under water within a special management area that are included below: (A) Placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste; (B) Grading, removing, dredging, mining, or extraction of any materials; (C) Change in the density or intensity of use of land, including but not limited to the division or subdivision of land; (D) Change in the intensity of use of water, ecology related thereto, or of access thereto; and (E) Construction, reconstruction, or alteration of the size of any structure; and (2) Does not include the following: (A) Construction or reconstruction of a single-family residence that is less than seven thousand five hundred square feet of floor area; is not situated on a shoreline parcel or a parcel that is impacted by waves, storm surges, high tide, or shoreline erosion; and is not part of a larger development; (B) Repair or maintenance of roads and highways within existing rights-of-way; (C) Routine maintenance dredging of existing streams, channels, and drainage ways; 4 (D) Repair and maintenance of underground utility lines, including but not limited to water, sewer,power, and telephone and minor appurtenant structures such as pad mounted transformers and sewer pump stations; (E) Zoning variances, except for height, density,parking, and shoreline setback; (F) Repair, maintenance, or interior alterations to existing structures; (G) Demolition or removal of structures, except those structures located on any historic site as designated in national or state registers; (H) Use of any land for the purpose of cultivating,planting, growing, and harvesting plants, crops, trees, and other agricultural, horticultural, or forestry products or animal husbandry, or aquaculture or mariculture of plants or animals, or other agricultural purposes, including all traditional fishpond and traditional agricultural practices; (I) Transfer of title to land; (J) Creation or termination of easements, covenants, or other rights in structures or land; (K) Subdivision of land into lots greater than twenty acres in size; (L) Subdivision of a parcel of land into four or fewer parcels when no associated construction activities are proposed; provided that any land that is so subdivided shall not thereafter qualify for this exception with respect to any subsequent subdivision of any of the resulting parcels; (M) Installation of underground utility lines and appurtenant aboveground fixtures less than four feet in height along existing corridors; (N) Structural and nonstructural improvements to existing single-family residences,where otherwise permissible; (0) Nonstructural improvements to existing commercial or noncommercial structures; (P) Construction, installation, maintenance, repair, and replacement of emergency management warning or signal devices and sirens; (Q) Installation, maintenance, repair, and replacement of public pedestrian and bicycle facilities, including sidewalks,paths, bikeways, crosswalks, stairs, ramps, traffic control barriers, signs, signals, and associated improvements; (R) Trash removal or invasive vegetation removal or control, including incidental ground disturbance, excluding the use of herbicides; (S) Installation of fencing, including associated improvements and incidental structures, for invasive species control or preservation of native habitats on conservation land; (T) Installation, maintenance, repair, and replacement of lighting, fixtures, and equipment to establish compliance with current standards at existing public facilities; (U) Installation, maintenance, repair, and replacement of security measures, including fencing, to existing public facilities; and 5 (V) Hawaiian traditional and customary practices, including work conducted by traditional means near, in, or related to loko la, traditional Hawaiian fishponds; provided that whenever the authority finds that any excluded use, activity, or operation may have a cumulative impact, or a significant environmental or ecological effect on a special management area,that use, activity, or operation shall be defined as "development" for the purpose of this part. The Director properly determined that the exterior construction of a first-floor concrete deck and a 240 square foot upper level lanai, construction of an interior staircase, and replacement of the existing structure's roof clearly falls within the definition of actions that are NOT development pursuant to HRS §205A-22(2), more specifically, subsections (A), (F), and (N). The Director's evaluation of the proposed work considered whether these minor alterations and repairs to the existing single-family home, including the addition of a 240 square foot lanai, would have a cumulative impact or significant environmental or ecological impact on the protected shoreline management area and properly determined that it would not. Planning Commission Rule 9 includes the similar definitions of"development" and what is not"development." See Planning Commission Rule 9-4(i)(1) ["development'J and 9-4(i)(2) [not "development'J. Specifically, Rule 9-4(i)(2)(A)provides that development does not include"construction or reconstruction of a single-family residence that is less than seven thousand five hundred (7,500) square feet of floor area, is not situated on a shoreline parcel or a parcel that is impacted by waves, storm surges, high tide, or shoreline erosion, and is not part of a larger development." Rule 9-4(i)(2)(F) excludes "repair, maintenance, or interior alterations to existing structures or relating to existing uses" from the definition of"development." Rule 9- 4(i)(2)(0) also excludes "structural and non-structural improvements to existing single-family residences, where otherwise permissible"from the definition of"development." Rule 9-4(i)(4) does allow that whenever the Director finds that any otherwise-excluded use may have a 6 cumulative impact or significant adverse environmental or ecological effect on the SMA, that use should be defined as "development." In the current case, the Director noted that the lot in question is not a shoreline parcel and reasonably and properly determined that the very minor alterations and repairs at the lot did not create any cumulative impact and would not have any significant adverse environmental or ecological effect on the shoreline. See ROA at Pages 24-25. Therefore, since the proposed use fell into the definition of activity that is "not development," the use is an exempt action and no SMA permit is required. See ROA at Pages 24-25. The Director returned the application and application fee to the Landowners. See ROA at Pages 24-25. B. Appellant's Complaints About Access To And From Her Property Are Not SMA Concerns Appellant's Petition states that she uses "Oeoe Street to take my walks down to Leleiwi and Richardson's beaches, to access my driveway at 369 Nene Street, and to receive emergency services, including fire trucks that hook up to a fire hydrant on the corner of Oeoe Street and Kalanianaole Street." See Petition at Page 1. As stated above, SMA regulation concerns the protection of the shoreline environment and public access to the shoreline. While Appellant may prefer Oeoe Street, she and her B&B guests have two alternative and equally accessible routes to the nearby shoreline. They can walk from her makai property boundary directly across Kalanianaole Street to the publicly owned shoreline parcels and beach parks or can access Koloa Street on the western side of the same block. See Planning Department's Exhibits. The accessibility of Appellant's non-shoreline property is not an SMA concern. Access to Appellant's home for emergency response might involve the arrival of police vehicles, ambulances or fire trucks. All such responding vehicles would be coming from stations in Hilo 7 town, to the west of Appellant's lot. See Planning Department's Exhibits. Tsunami evacuation routes from the vicinity of Appellant's property exit Nene Street in the mauka direction from the west of Appellant's lot. See Planning Department's Exhibits. Traversing Oeoe Street from Appellant's property in the event of a tsunami evacuation would involve moving toward danger rather than away from danger. See Planning Department's Exhibits. Any very slight increase in traffic congestion existing on Oeoe Street which may be caused by the potential for additional vehicles in the area in relation to the Landowners'property, does not rise to the level of a significant adverse environmental or ecological effect on the SMA nor does it create a cumulative impact even when combined with vehicles from neighboring properties, or vehicles brought into the area by members of the public from other areas. Appellant currently has three alternative pathways to directly access the shoreline from her property, only one of which may have a speculative change should the Landowners proceed with their plans. SMA regulation does not guarantee that every member of the public will have completely unimpeded access via their favorite route through a neighborhood to the shoreline. The SMA seeks to protect access to the shoreline only. The SMA does not regulate ability to access Appellant's property by emergency vehicles or Appellant's mauka evacuation routes away from the shoreline. C. The Director's Return of Application Letter Does Not Address Landowners' STVR NUC 8 The Landowners hold a valid non-conforming use certificate ("NUC")to operate a short- term vacation rental ("STVR") on their property. The NUC was issued in 2019. Any appeal period relating to issuance of the NUC has long since elapsed. Hawaii County Code §25-2-20(a) allows that"[a]ny person aggrieved by the decision of the director in the administration or application of this chapter, may, within thirty days after the date of the director's written decision, appeal the decision to the board of appeals." [emphasis added] The Return of Application Letter makes no mention of the NUC or of the Landowners' operation of a STVR at their property. This appeal must be limited to the Director's current decision and is not an opportunity reopen appeal periods for unrelated matters which have long ago lapsed. Thus, all matters raised by Appellant concerning STVR usage or the NUC must be disregarded as outside the scope of this appeal. III. Conclusion The Director respectfully requests that this Board find in favor of the County, affirming the Director's determination that no SMA Use Permit is required as set forth in Return of Application Letter dated April 11, 2025 because the lot in question is not a shoreline lot and the proposed uses meet the definition of activities that are "not development" and thus exempt from SMA permitting. The Director's Return of Application Letter did not violate the law, was not clearly erroneous, and was not arbitrary or capricious, characterized by an abuse of discretion or a clearly warranted exercise of discretion. The Director correctly applied the law and exercised appropriate discretion in determining (1)that, factually, the lot is not a shoreline lot, (2)that the proposed uses meet the definition of activities which are "not development"pursuant to HRS §§ 205A-22(2) (A), (F), and (N) and Planning Commission Rule 9-4(i)(2)(A), (F), and (0), and(3) 9 that the proposed activity will not have a cumulative impact or significant adverse environmental or ecological effect on the SMA. The Director requests that this appeal be denied and dismissed. Dated: Hilo, Hawai`i, November 7, 2025. COUNTY OF HAWAII PLANNING DIRECTOR By: ls/Jean K. Campbell JEAN K. CAMPBELL Deputy Corporation Counsel Its Attorney 10 BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I CLAUDIA ROHR, CASE NOS. PL-BOA-2025-000119 Appellant, CERTIFICATE OF SERVICE vs. JEFFREY W. DARROW,PLANNING DIRECTOR, COUNTY OF HAWAI'I, Appellee, and RICHARD and DEBORAH STANDKE, Landowners. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document was served upon the parties identified below by electronic mail service upon the following on November, 2025: Delivered via Electronic Mail (E-Mail and/or EPIC) CLAUDIA ROHR Appellant pro se RICHARD STANDKE DEBORAH STANDKE Landowners SYLVIA WAN, ESQ. Deputy Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, HI 96720 Attorney for Board of Appeals 11 BOARD OF APPEALS 101 Pauahi Street, Suite 3 Hilo, HI 96720 Board of Appeals Dated: Hilo, Hawai`i, November 7, 2025. Is/Jean K. Campbell JEAN K. CAMPBELL Deputy Corporation Counsel 12